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Law Educator, Esq., Lawyer

Category: Family Law

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Experience: Experienced attorney: Family law, Estate Law, SS Law etc.

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For PaulMJDMy wife and I have been separated for 3 years

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For PaulMJD My wife and I have been separated for 3 years pursuant to a divorce. She is the Petitioner, and there are no children, however she has severe mental problems and has frustrated any progress toward finalizing this relationship; primarily by exhibiting extreme passive aggressive behavior. She was diagnosed with Dementia by a Forensic Psychologist PhD in 1999 pursuant to being awarded SSI benefits which she did receive and continues to receive today. Her attorney refuses to acknowledge that she has any mental problems. Her neurologist, who is also a psychiatrist, told me in March of 2010, that she suffers from Acute Psychotic Disorder and offered to put her in the Psychiatric ward of a local hospital, but I did not want her locked up, which was a huge mistake on my part. She was allowed, by mutual verbal agreement, to occupy the marital home. The agreement was that she would pay the mortgage and other costs associated with the home. Now she has not paid the mortgage which was due on August 1st, and it is not because she does not have the money. She has been hiding from her attorney and me for the last 30 days. She does not answer the phone or come to the door when she is obviously home. Since she is unquestionably nuts, my concern is that the home will go into foreclosure, costing us the only real asset in which I will have any participation. (She took the joint funds in our bank account, closed it and moved the monies to a separate account just before she filed the divorce.) I do not have any money and I believe she feels if she can hold out long enough, I will die, (I am 72), and she will get everything by default. I believe she has finally completely lost her mind and will not make the mortgage payments regardless of what happens and I cannot afford to make them. If that happens, I only have about 90 days or so before foreclosure proceedings would begin. I need to get her out of the home and get it on the market ASAP. My concern is that I will have to file a Motion for an order to remove her,and put it on the market. The last and only motion I filed was 7 weeks ago, and the Judge has not acknowledged it in any way. I spoke to the Judge’s clerk who told me she had no idea when the judge would hold a hearing on it. On a motion to move her out, I do not have 2-3 months to wait for a hearing. Do you think this would qualify for an “emergency” hearing or whatever it is called? I will not be able to list the home without a court order and I need it now. Can you give me your opinion on what might be my best approach to get some action on this in a reasonable timeframe? The Consolidated Pre-Trial Order has been filed since the end of April. Her attorney listed as the only issue to be contested is whether or not she has Dementia. I have a copy of the Psychiatrist’s diagnosis. Sorry to be so verbose.

Just because she will not settle the matter and is being disagreeable, you need to get the matter set for a contested hearing and inform the court you cannot agree between yourselves to resolve the matter and let the court decide.

You can prove she has dementia by simply serving her doctors with subpoenas and getting them to court to testify.

If you need a hearing soon because of the impending foreclosure, you need to file a motion for an emergency or expedited hearing and explain in there the reason for the expedited hearing being needed. Trying to avoid foreclosure is grounds for an expedited hearing and you need to attach proof that they are seeking to foreclose or are on the verge of foreclosure.

(a) Subject to subsections (b) through (e), a former spouse of a deceased employee, Member, or annuitant (or of a former employee or Member who dies after having separated from the service with title to a deferred annuity under section 8413 but before having established a valid claim for annuity) is entitled to an annuity under this section, if and to the extent expressly provided for in an election under section 8417 (b), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.(b)(1) The annuity payable to a former spouse under this section may not exceed the difference between—(A) the amount applicable in the case of such former spouse, as determined under paragraph (2); and(B) the amount of any annuity payable under this section to any other former spouse of the employee, Member, or annuitant, or former employee or Member, based on an election previously made under section 8417 (b), or a court order previously issued or agreement previously entered into as described in subsection (a).(2) The applicable amount, for purposes of paragraph (1)(A) in the case of a former spouse, is the amount of the annuity which would be payable under the provisions of section 8442 (including subsection (f) of such section, but without regard to subsection (h) of such section) if such former spouse were a widow or widower entitled to an annuity under such provisions based on the service of the deceased employee, Member, or annuitant, or former employee or Member.(c) The commencement and termination of an annuity payable under this section shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity—(1) shall not commence before—(A) the day after the employee, Member, or annuitant, or former employee or Member, dies; or(B) the first day of the second month beginning after the date on which the Office receives written notice of the order, decree, agreement, or election, as the case may be, together with such additional information or documentation as the Office may prescribe;whichever is later; and(2) except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies.(d) For purposes of this chapter, a modification in a decree, order, agreement, or election referred to in subsection (a) shall not be effective—(1) if such modification is made after the retirement or death of the employee, Member, or annuitant, or former employee or Member, concerned; and(2) to the extent that such modification involves an annuity under this section.(e) For purposes of this chapter, a decree, order, agreement, or election referred to in subsection (a) shall not be effective, in the case of a former spouse, to the extent that it is inconsistent with any joint waiver previously executed with respect to such former spouse under section 8416 (a).(f)(1) Any amount under section 8442 (b)(1)(A) which would otherwise be payable to a widow or widower based on the service of another individual shall be paid (in whole or in part) by the Office to a former spouse of such individual if and to the extent expressly provided for in the terms of a court decree of divorce, annulment, or legal separation, or the terms of a court order or court-approved property settlement incident to any decree of divorce, annulment, or legal separation.(2) Paragraph (1) shall apply only to payments made by the Office after the date of receipt in the Office of written notice of such decree, order, or agreement, and such additional information and documentation as the Office may prescribe.(g) Any payment under this section to a person bars recovery by any other person.(h)(1) Subsection (c)(2) (to the extent that it provides for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the former spouse was married for at least 30 years to the individual on whose service the survivor annuity is based.(2) A remarriage described in paragraph (1) shall not be taken into account for purposes of section 8419 (b)(1)(B) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection.

It will take a while to digest everything you sent me. I tried to subpoena the medical records that narrowly related to her mental state, with the alternative that the doctor would be required to appear in court and I got a nasty reply from their lawyers giving me a blistering rejection and basically telling me literally at least 10 reasons I could not do anything I attempted to do.

If I do subpoena them, I cannot pay for a transcriber to document a deposition and if they actually do appear in court, do I have to pay them for their time?

Sorry, the last part of that a post was a typographical error and you need to disregard that statute as it has nothing to do with your case, it was from something else.

Please disregard the following part as it does not pertain to your situation and please accept my apology for the error:

(a) Subject to subsections (b) through (e), a former spouse of a deceased employee, Member, or annuitant (or of a former employee or Member who dies after having separated from the service with title to a deferred annuity under section 8413 but before having established a valid claim for annuity) is entitled to an annuity under this section, if and to the extent expressly provided for in an election under section 8417 (b), or in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.(b)(1) The annuity payable to a former spouse under this section may not exceed the difference between—(A) the amount applicable in the case of such former spouse, as determined under paragraph (2); and(B) the amount of any annuity payable under this section to any other former spouse of the employee, Member, or annuitant, or former employee or Member, based on an election previously made under section 8417 (b), or a court order previously issued or agreement previously entered into as described in subsection (a).(2) The applicable amount, for purposes of paragraph (1)(A) in the case of a former spouse, is the amount of the annuity which would be payable under the provisions of section 8442 (including subsection (f) of such section, but without regard to subsection (h) of such section) if such former spouse were a widow or widower entitled to an annuity under such provisions based on the service of the deceased employee, Member, or annuitant, or former employee or Member.(c) The commencement and termination of an annuity payable under this section shall be governed by the terms of the applicable order, decree, agreement, or election, as the case may be, except that any such annuity—(1) shall not commence before—(A) the day after the employee, Member, or annuitant, or former employee or Member, dies; or(B) the first day of the second month beginning after the date on which the Office receives written notice of the order, decree, agreement, or election, as the case may be, together with such additional information or documentation as the Office may prescribe;whichever is later; and(2) except as provided in subsection (h), shall terminate no later than the last day of the month before the former spouse remarries before becoming 55 years of age or dies.(d) For purposes of this chapter, a modification in a decree, order, agreement, or election referred to in subsection (a) shall not be effective—(1) if such modification is made after the retirement or death of the employee, Member, or annuitant, or former employee or Member, concerned; and(2) to the extent that such modification involves an annuity under this section.(e) For purposes of this chapter, a decree, order, agreement, or election referred to in subsection (a) shall not be effective, in the case of a former spouse, to the extent that it is inconsistent with any joint waiver previously executed with respect to such former spouse under section 8416 (a).(f)(1) Any amount under section 8442 (b)(1)(A) which would otherwise be payable to a widow or widower based on the service of another individual shall be paid (in whole or in part) by the Office to a former spouse of such individual if and to the extent expressly provided for in the terms of a court decree of divorce, annulment, or legal separation, or the terms of a court order or court-approved property settlement incident to any decree of divorce, annulment, or legal separation.(2) Paragraph (1) shall apply only to payments made by the Office after the date of receipt in the Office of written notice of such decree, order, or agreement, and such additional information and documentation as the Office may prescribe.(g) Any payment under this section to a person bars recovery by any other person.(h)(1) Subsection (c)(2) (to the extent that it provides for termination of a survivor annuity because of a remarriage before age 55) shall not apply if the former spouse was married for at least 30 years to the individual on whose service the survivor annuity is based.(2) A remarriage described in paragraph (1) shall not be taken into account for purposes of section 8419 (b)(1)(B) or any other provision of this chapter which the Office may by regulation identify in order to carry out the purposes of this subsection.

If her mental condition is an issue in your case, you are entitled to put doctors on to establish that condition. You would have to pay the doctors for their time to appear in court though as they are expert witnesses.

Paul: I am sorry. I apparently misunderstood your answer when I accepted it earlier. When you talk aboutt an expedited hearing, are you speaking of a final hearing? What I am most interested in at present is getting her to live up to her obligation to pay the mortgage or move, in addition to allowing me access to the joint property in the home for the purpose of ascertaining what is there and what is missing. She claims several burglaries have occurred and items of joint property have been taken but she does not know specifically what they are. I filed a motion to gain access for that purpose 7 weeks ago and have heard nothing. I do not see how the judge can divide the joint property if she does not know what still exists. I cannot wait for 2-3 months to get an order from the judge to enforce her obligation to pay the mortgage or move out. That is what I need expedited. Also you mentioned I need some proof of pending foreclosure to ensure I can get an expedited hearing. She is defaulting on the notes. Isn't that proof that she is endangering a joint asset without waiting for the mortgage company to write me a threatening notice of foreclosure? This is waterfront property and a very nice home with a relatively low mortgage balance. I doubt the bank will hesitate to foreclose as soon as they possibly can and then it will be too late. I need to get an order to make her pay or move and I need it ASAP. What is my best option without going for a final hearing on the entire divorce which cannot be settled until the joint property is identified as I explain above.

Thank you for your reply. I apologize for the delay as I was out of the country and had limited Internet available.

I was referring to an expedited hearing on the house issue alone since that is a pending emergency with the foreclosure issues and the missing property. The fact she is missing payments does not necessarily mean foreclosure is pending anytime soon. Many mortgage companies take a year or more to file any foreclosure action, but when you said foreclosure was pending we take that to mean you have already received a notice of foreclosure suit from the bank. However showing she is not paying and risking the property is grounds to get the hearing on just this asset to get the court to stop her from losing that property and the contents.

Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. LeeMichigan

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PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. TonyApopka, FL

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